05A10616
07-25-2001
Donald Atley, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, (Grain Inspection, Packers and Stockyards Administration), Agency.
Donald Atley v. Department of Agriculture (GIPSA)
05A10616
July 25, 2001
.
Donald Atley,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
(Grain Inspection, Packers and Stockyards Administration),
Agency.
Request No. 05A10616
Appeal No. 01A10184
Agency No. 98-0602
Hearing No. 130-99-8166X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Donald
Atley v. Department of Agriculture (GIPSA), EEOC Appeal No. 01A10184
(January 9, 2001). EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates that: (1) the appellate decision involved
a clearly erroneous interpretation of material fact or law; or (2)
the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).
Complainant alleged that he was discriminated against on the basis
of reprisal (prior EEO activity) when on or about February 8, 1998,
he received a seven (7) calendar day suspension for conduct unbecoming
of a federal employee. The EEOC Administrative Judge (AJ) issued a
decision without a hearing, finding no discrimination. The AJ found
that while complainant established a prima facie case of reprisal,
the agency articulated legitimate, nondiscriminatory reasons for its
actions, and these reasons were not pretextual in nature. The agency's
final action implemented the AJ's decision. Pursuant to complainant's
appeal, the Commission affirmed the agency's final action, as we found
that complainant failed to demonstrate that it was more likely than not
that the agency's articulated reasons were a pretext for retaliation.
By letter from his counsel dated May 2, 2001, complainant sought
reconsideration of the Commission's decision, well past the thirty (30)
calendar days for filing a request for reconsideration as allowed by
29 C.F.R. � 1614.405. Complainant acknowledged that the request was
untimely, but noted difficulty in securing counsel and stated that
upon retaining counsel, his attorney had a congested calendar during
the month of April 2001 and was then required to review the extensive
documentation involved in the instant case. Complainant's counsel
thus petitioned the Commission to reconsider our initial decision.
However, in his statement filed with the request for reconsideration,
complainant's counsel has alleged no clearly erroneous interpretation
of material fact or law in the Commission's prior decision, nor has he
alleged that the Commission's appellate decision will have a substantial
impact on the policies, practices, or operations of the agency. See 29
C.F.R. � 1614.405(b).
The Commission notes that complainant's counsel concedes that the request
for reconsideration was filed more than thirty (30) days after complainant
received a copy of the Commission's decision. After consideration of
the statement submitted by complainant's counsel with the request for
reconsideration and a review of the record, the Commission finds that
neither complainant nor his counsel have offered adequate justification
for an extension of the applicable time limit for filing the request
for reconsideration.
Therefore, it is the decision of the Commission to DISMISS the Request
to Reconsider as it was untimely filed. The decision in EEOC Appeal
No. 01A10184 remains the Commission's final decision. There is no further
right of administrative appeal on the decision of the Commission on this
request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 25, 2001
__________________
Date